Preserving Sacred Places- Free Exercise and Historic Preservation

Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2008 Preserving Sacred Places: Free Exercise and Historic Preservation in the Context of Third Church of Christ, Scientist, Washington, DC Bryan Stockton Georgetown University Law Center This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/hpps_papers/29 This open-access article is brought to you by the Georgetown Law Library Posted with permission of the author Follow this and additional works at: http://scholarship.law.georgetown.edu/hpps_papers Preserving Sacred Places: Free Exercise and Historic Preservation in the Context of Third Church of Christ, Scientist, Washington, DC Bryan Stockton Historic Preservation Seminar Georgetown University Law Center Tersh Boasberg May 2008 TABLE OF CONTENTS INTRODUCTION - - - - - - - - - I CONTROVERSY SURROUNDING THE LANDMARKING OF THIRD CHURCH OF CHRIST, SCIENTIST - - II BACKGROUND ON FREE EXERCISE LAW - - - - - A Supreme Court free exercise jurisprudence - - - - B RFRA - - - - - - - - - C RLUIPA - - - - - - - - - III CONSIDERATIONS OF STANDING AND RIPENESS - - - A Standing - - - - - - - - - B Ripeness - - - - - - - - - 10 IV ANALYSIS OF A POTENTIAL CHALLENGE BY THIRD CHURCH UNDER THE FREE EXERCISE CLAUSE - - 12 A Historic preservation laws are neutral and generally applicable - - 12 B Does regulation of religious property implicate freedom of speech? - 14 C A denial of a demolition permit is not an individualized exemption under Smith - - 17 D The required maintenance of a landmarked church is not necessarily a substantial burden on the free exercise of religion - 21 V ANALYSIS OF A POTENTIAL SUIT UNDER RLUIPA - - - 26 A Protections to religious exercise under RLUIPA - - - - 26 B Individualized assessments and strict scrutiny - - - 28 C Historic preservation of a religious property does not create a substantial burden unless religious exercise is made effectively impractical - 30 D Role for accommodation - - - - - - - - 40 CONCLUSION - - - - - - - - - 42 APPENDIX A - - - - - - - - - - 44 APPENDIX B- - - - - - - - - - 45 ii INTRODUCTION Houses of worship are more than mere bricks and mortar For congregants, they are sacred places of worship, contemplation, and fellowship For the community-at-large, churches define neighborhood skylines and often provide valuable social services For preservationists, churches represent some of the most ambitious (and controversial) architectural and design efforts of past generations As surrounding shops and residences have deteriorated or been destroyed for redevelopment, churches often remain, as symbols of times past Historic preservation of churches can create unique tensions between congregations, which want to be able to alter or demolish their buildings to meet changing needs, and preservationists, who want to preserve their architectural integrity Historic preservation imposes substantial financial constraints on congregations Landmarking may make maintenance more expensive and hinder the transferability of the property Religious groups, citing the free exercise clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), claim that historic preservation laws not apply to churches Preservationists argue that religious groups should not receive special exemptions from neutral laws of general applicability This paper will analyze the tension between the historic preservation of sacred places and the free exercise of religion as seen through the recent controversy surrounding the landmarking of Third Church of Christ, Scientist, in Washington, D.C Assuming Third Church would bring a See Melanie E Homer, Landmarking Religious Institutions: The Burden of Rehabiltation and the Loss of Religious Freedom, 28 URB LAWYER 327 (1996) See Stephen M Watson, First Amendment Challenges to Historic Preservation Statutes, 11 FORDHAM URB L J 115, 121 (1982); see also Evelyn B Newell, Model Free Exercise Challenges for Religious Landmarks, 34 CASE W RES L R 144, 154-57 (1983) (describing in detail four hypothetical burdens on religious exercise) U.S CONST amend I 42 U.S.C §2000cc (2000) free exercise and RLUIPA challenge if the District denied a demolition permit, this paper will examine how such a suit would likely fail After describing the factual background, the paper will evaluate questions of standing and ripeness The mere fact of landmarking does not create a cause of action recognized by District of Columbia courts, so any potential suit would have to be brought after administrative remedies are exhausted The paper will then analyze the potential challenge under pre-RLUIPA free exercise jurisprudence and conclude that despite cases to the contrary in Kansas and Washington State, the denial of a demolition permit is not a violation of free exercise under the Supreme Court’s analysis in Employment Division v Smith The paper will then address the inherent contradictions within RLUIPA when religious entities try to invoke strict scrutiny to challenge historic preservation laws While claiming to codify existing free exercise jurisprudence and not confer immunity from land use regulations to religious entities, RLUIPA contradictorily seems to expand free exercise protections by triggering strict scrutiny review upon a showing of an “individualized assessment” by a government body in land use decisions Although a District of Columbia court likely would not find the District’s denial of a demolition permit to violate the free exercise clause, a court’s determination of a RLUIPA violation is a much closer question and would depend on how it interprets “substantial burden.” Circuit courts are split, but the more compelling precedent suggests that the District’s insistence on preserving the landmarked church would not violate RLUIPA The mere denial of a demolition permit to Third Church absent a showing by the church of economic hardship triggering a taking would not violate the expanded protections afforded religious groups through RLUIPA because the denial does not make religious exercise “effectively impracticable” 494 U.S 872 (1990) and increased costs on religious beliefs are not alone a substantial burden I CONTROVERSY SURROUNDING THE LANDMARKING OF THIRD CHURCH OF CHRIST, SCIENTIST Third Church of Christ, Scientist in Washington, D.C does not look like a traditional church Situated two blocks north of the White House, the church is an octagonal structure, with high concrete, windowless walls, that stands in an unadorned plaza on 16th St NW Araldo Cossutta, a principal architect in the renowned firm of I.M Pei, designed the structure, which was finished in 1971 The church is considered an example of Brutalist architecture—a midtwentieth century movement that emphasized the use of rough, poured-in-place concrete as the building medium In late 2007, the Committee of 100 of the Federal City and the District of Columbia Preservation League nominated the church for landmark status In December 2007, the District of Columbia Historic Preservation Review Board (HPRB), based on the testimony of multiple architects, architectural historians, and other knowledgeable experts regarding the building’s architectural significance, granted landmark status to the entire church complex: the octagonal Paul Schwartzman, Church Gets Landmark Status over Congregation’s Objections, WASH POST., Dec 7, 2007, at B03 D.C HISTORIC PRESERVATION OFFICE, STAFF REPORT FOR THIRD CHURCH OF CHRIST, SCIENTIST (Nov 1, 2007) (on file with author) The Historic Preservation Office’s staff report noted that the church “was one of the best examples of Brutalism in the Washington area and one of the most important Modernist churches.” Id at In addition, the design won the Washington Board of Trade’s Award for Excellence in Architecture and a craftsmanship award for the concrete work from the Washington Building Congress Id at Thus, the church complex satisfied the Historic Preservation Review Board’s designation criterion F, for “notable works of craftsmen, artists, sculptors, architects, landscape architects, urban planners, engineers, builders, or developers whose works have influenced the evolution of their fields of endeavor, or are significant to the development of the District of Columbia or the nation.” Id at 10 Richard Longstreth, a George Washington University architectural history professor, testified before the board that the Third Church complex is “in a league of its own” as a “distinctive and original work.” Mark Fisher, State vs Church: March of the Preservation Police, WASH POST., Dec 7, 2007, church itself, the rectangular office building that housed the offices of the Christian Science Monitor, and the triangular courtyard between the church and office building The congregation opposed the landmark designation at the December meeting They claimed the structure, which holds 400 people, was too large for the congregation of forty to sixty weekly worshippers The congregants expressed concern about the costs of maintaining the aging structure They also stated that the building’s fortress-like design impeded their worship and ability to attract new members The landmarking has frustrated the plans of the congregation The Mother Church of Christian Science had conveyed the property to a commercial real estate developer, ICG, who promised to construct a smaller sanctuary on the site At the landmarking hearing, the church was represented by the Becket Fund for Religious Liberty, a public interest law firm that provides legal services to religious organizations 10 Since the HPRB would have to issue a demolition permit for the developer to tear down the church, the church, through the Becket Fund, may choose to challenge a denial of that permit “We have let HPRB know that it is treading on dangerous ground,” said the church’s counsel 11 II BACKGROUND ON FREE EXERCISE LAW A Supreme Court Free Exercise Jurisprudence The Supreme Court’s free exercise jurisprudence has changed significantly over the past forty years and has been a source of much controversy In Sherbert v Verner, the Warren Court http://blog.washingtonpost.com/rawfisher/2007/12/state_vs_church_march_of_the_p.html Schwartzman, supra note Darrow Kirkpatrick, a congregant who opposed the designation, testified: “We know of no way to adapt the building to meet our needs….It’s not a welcoming building.” Schwartzman, supra note 10 Id 11 Id held that burdens upon religious exercise were subject to strict scrutiny—that is, for the government action or law to survive judicial review the government had to assert both a compelling interest and that its action or law was narrowly tailored to achieve this objective 12 Commentators saw this standard to be extremely favorable to religious groups The Sherbert compelling interest test was the prevailing free exercise standard until the Court’s 1990 decision in Employment Division v Smith, which held that neutral, generally applicable laws were subject to rational basis review, not strict scrutiny 13 The Sherbert compelling interest test still applied to government action that was not neutral toward religion or generally applicable There were however, two exceptions to the Smith rule imposing rational basis review First, where the claim is “hybrid”—in that it combines free exercise with another constitutional right (like freedom of speech)—strict scrutiny is appropriate 14 Second, “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” 15 The individualized exemption exception can be summarized as follows: as long as a law does not contain any exemptions, it is considered generally applicable and religious groups cannot claim a right to exemption; however, if a law has secular exemptions, then religious groups can challenge the law.16 In the words of the Tenth Circuit, “the general applicability test gives religious groups something akin to a disparate treatment claim.” 17 By requiring the government to merely show a rational basis for its actions in most cases, the Court immediately made it more difficult for individuals and religious entities to bring successful free exercise challenges 12 374 U.S 398 (1963) 494 U.S 872, 876-77 (1990) 14 Id at 882 15 Id at 884 16 See Grace United Methodist Church v City of Cheyenne, 451 F.3d 643, 650 (10th Cir 2006) 17 Id 13 B RFRA Unsurprisingly, the Smith decision was not popular with certain constituencies Several years later Congress approved and President Clinton signed into law the Religious Freedom Restoration Act of 1993 (RFRA), which attempted to overturn Smith and “restore” the compelling interest test for federal and state actions that “substantially burdened” the free exercise of religion, even if such burdens derived from neutral rules of general applicability 18 Four years later, in City of Boerne v Flores, 19 the Supreme Court held RFRA to be unconstitutional, although subsequent courts have suggested that RFRA would still apply to federal governmental action 20 The Court in City of Boerne dismissed a church’s RFRA challenge to a Texas town’s denial of a demolition permit for a historic sanctuary building 21 Although Congress may enforce constitutional rights pursuant to Section Five of the Fourteenth Amendment, the Court in City of Boerne held that Congress had not simply enforced First Amendment rights but had exceeded its constitutional authority by defining the boundaries of those rights 22 The Court stressed that RFRA was out of proportion to its supposed remedial or preventative object, considering that Congress had presented no evidence in the legislative record of any widespread pattern of religious discrimination by states or the federal government 23 C RLUIPA Not dissuaded, Congress passed new legislation, the Religious Land Use and 18 See 42 U.S.C §2000bb-1 (2000) 521 U.S 507 (1997) 20 See Sutton v Providence St Joseph Med Ctr., 192 F.3d 826, 832 (9th Cir 1999) (collecting cases) 21 City of Boerne, 521 U.S at 507 22 Id at 508-09 23 Id at 509 19 Institutionalized Persons Act of 2000 (RLUIPA), which President Clinton signed into law in September 2000 RLUIPA reinstated the same general rule of RFRA: state action that substantially burdens religious exercise can be justified only as the “least restrictive means” of further a “compelling governmental interest.”24 However, RLUIPA, unlike RFRA, did not apply to all government action but only to state or federal government action involving land use or institutionalized persons Within the context of land use regulation, RLUIPA applies where the “burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes…individualized assessments of the proposed uses for the property involved.” 25 The purpose in passing RLUIPA’s land use provisions was to eliminate covert discrimination against religious groups by zoning boards 26 Despite its sweeping language, the statute was not intended to immunize religious institutions from local land use laws 27 The Supreme Court has upheld the constitutionality of RLUIPA only in regard to its application to institutionalized persons 28 Lower courts have generally agreed that RLUIPA is constitutional in regard to land use regulations 29 However, no court has addressed RLUIPA’s constitutionality as applied to historic preservation laws, and the legislative record of RLUIPA 24 See 42 U.S.C §§ 2000cc(a)(1), 2000cc-1(a) (2000) The full text of § 2000cc is in Appendix A § 2000cc(a)(2) 26 See Daniel Lennington, Thou Shalt Not Zone: the Overbroad Applications and Troubling Implications of RLUIPA’s Land Use Provisions, 29 SEATTLE U L REV 805, 816 (2006) 27 A joint statement issued by the sponsors of the legislation, Senators Hatch and Kennedy, explains, “This Act does not provide religious institutions with immunity form land use regulation, no does it relieve religious institutions from applying for variances, special permits or exceptions, hardship approval, or other relief provision in land use regulations, where available without discrimination or unfair delay.” 146 CONG REC S7774-01, S7776 (daily ed July 27, 2000) 28 See Cutter v Wilkinson, 544 U.S 709 (2005) 29 See, e.g., United States v Maui County, 298 F Supp.2d 1010 (D Haw 2003) (upholding constitutionality of LUIPA against establishment clause, enforcement clause, commerce clause, and Tenth Amendment challenges); Guru Nanak Sikh Society of Yuba City v County of Sutter, 456 F.3d 978 (9th Cir 2006) (upholding RLUIPA as valid exercise of Congress’s enforcement powers) 25 burden 127 Indeed, recent Supreme Court decisions show that the substantial burden test is a difficult standard to meet 128 and is rarely satisfied without a showing of coercion, 129 animus toward religion, 130 or the threat of criminal sanctions for religiously motivated activities 131 Five circuits narrowly interpret “substantial burden” The Second, Third, Fifth, Ninth, and Eleventh Circuits have narrowly interpreted the term “substantial burden,” holding that inconveniences or financial difficulties not rise to the level of substantial burdens The Second Circuit, suggesting in dicta that a town’s denial of a special use permit for a religious day care center would not be a substantial burden, cautioned that if RLUIPA is construed too broadly, “a serious question arises whether it goes beyond the proper function of protecting the free exercise of religion into the constitutionally impermissible zone of entwining government with religion in a manner that prefers religion over irreligion and confers special benefits on it.” 132 In other words, courts should narrowly interpret what constitutes a substantial burden on religion to avoid a potential Establishment Clause violation The Seventh Circuit, in one of the first cases addressing the question of what constituted a substantial burden under RLUIPA, recognized that although RLUIPA expanded the definition of religious exercise to include mere use of property for religious purposes, not every 127 146 CONG REC S7776 (daily ed July 27, 2000) See Braunfield v Brown, 366 U.S 599, 605 (1961) (finding no substantial burden when Sunday closing law merely made practice of religion more expensive); Bowen v Roy, 476 U.S 693 (1986) (finding no substantial burden even though government’s use of social security number would allegedly negatively affect plaintiff’s soul); Lyng v Northwest Indian Cemetery Protective Ass’n, 485 U.S 439 (1988) (finding no substantial burden when government built road through forest held sacred by Native Americans because action interfered with, but did not coerce, individual beliefs) 129 See Sherbert v Verner, 374 U.S 398 (1963) (finding substantial burden when individual forced to choose “between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion…on the other”) 130 See Church of the Lukumi Babalu Aye v City of Hialeah, 508 U.S 520, 533 (1993) 131 Id 132 Westchester Day Sch v Vill of Mamaroneck, 386 F.3d 183, 189 (2d Cir 2004) 128 31 infringement on use would be substantial In upholding Chicago’s requirement of a special use permit for any church that sought to operate in a business or commercial zone, the court reasoned that applying the substantial burden provision to any government action or regulation that constrained the use of property for religious purposes “would render meaningless the word ‘substantial,’ because the slightest obstacle to religious exercise incidental to the regulation of land use—however minor the burden it were to impose—could then constitute a burden sufficient to trigger” RLUPIA’s strict scrutiny 133 Thus, the Seventh Circuit defined a substantial burden for RLUIPA purposes as a government action that “necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise including the use of real property for the purpose thereof within the regulated jurisdiction generally effectively impracticable.” 134 The court justified its holding by claiming that a broader interpretation would impermissibly create religious exemptions from land use and that “no such free pass for religious land uses masquerades among the legitimate protections RLUIPA affords.” 135 Other circuits have followed this approach For example, the Third Circuit held that a city’s denial of a variance to build a church in a commercial district did not constitute a substantial burden because the denial was not a “significantly great restriction” making religious 133 Civil Liberties for Urban Believers v City of Chicago, 342 F.3d 752, 761 (7th Cir 2003) Id at 760-61 However, the Seventh Circuit's inclusion of a requirement that the challenged governmental action be the “direct” cause of an effective impracticability of using the real property for religious purposes appears to be inconsistent with the test under the Free Exercise Clause stated by the Supreme Court in Sherbert See Sherbert v Verner, 374 U.S 399, 404 (1963) (explaining that, if the purpose or effect of a law is to impede religious practice, the law is constitutionally invalid even though it has such effect only indirectly) Thus, perhaps the more complete standard is one that either indirectly or directly makes religious exercise impracticable The issue is of little importance because the Supreme Court has shifted away from examining the directness or indirectness of the burden to instead the substantiality of the burden Compare Braunfield v Brown, 366 U.S 599 (1961) and Sherbert, 374 U.S at 404 with Employment Div v Smith, 494 U.S 872, 899 (O’Connor, J., concurring) 135 Civil Liberties, 342 F.3d at 761 134 32 exercise “effectively impracticable.” 136 The Fifth Circuit, in the context of an institutionalized persons claim, held a “substantial burden” arises if government action “truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs.” 137 Echoing the element of coercion necessary for a substantial burden, the Ninth Circuit held that a “substantial burden” must be “oppressive” and “render religious exercise effectively impracticable.” 138 Finally, the Eleventh Circuit, in holding that a city requirement limiting churches and synagogues to the central business district did not impose a significant burden to a synagogue who members did not live near by and had to walk farther to attend services 139 The court defined a “substantial burden” as one that “directly coerces the religious adherent to conform his or her behavior accordingly.” Historic preservation laws, unless they make the practice of religion effectively impracticable, are not a substantial burden on religious exercise Historic preservation laws, while they add financial expense and inconvenience, not necessarily rise to the level of a substantial burden In Episcopal Student Foundation v City of Ann Arbor, the Eastern District of Michigan applied a narrow interpretation of substantial burden in the context of historic preservation The City of Ann Arbor denied a demolition permit to an Episcopal organization near the University of Michigan that sought to demolish its two-story building in a historic district The group alleged its ministry had outgrown the historic structure 136 Lighthouse Inst for Evangelism Inc v City of Long Branch, 100 F Appx 70, 77 (3d Cir 2004) (not precedential) 137 Adkins v Kaspar, 393 F.3d 559 (5th Cir 2004) 138 San Jose Christian Coll v City of Morgan Hill, 360 F.3d 1024, 1035 (9th Cir 2004) 139 Midrash Sephardi v Town of Surfside, 366 F.3d 1214, 1227 (11th Cir 2004) 33 and it wanted to erect a “large and multi-faceted church.” 140 The organization wanted to cater to students, but alternative sites near the university campus were impossible to obtain Nevertheless, the court found no substantial burden because the preservation ordinance’s financial burden and inconvenience did not “prevent the group from pursuing its religious beliefs, coerce its members into abandoning or violating those beliefs, or dissuade members from practicing their faith.” 141 It explicitly rejected the idea that the financial burdens on the religious organization constituted a substantial burden 142 The court recommended a variety of alternatives, which included renting worship space in another facility or constructing an addition on the site 143 Thus, the holding of Episcopal Student strongly supports the constitutionality of not exempting religious groups from historic preservation regulations In fact, the holding of Episcopal Student is in some regard even more compelling than St Bartholomew’s because the building at issue in Episcopal Student—like Third Church—is used for worship, not merely social services or offices, as was the case in St Bartholomew’s Thus, even though the building was more closely tied to a central religious exercise, the burden in not being able to demolish the structure was insufficient to violate the free exercise clause Circuits retreat from narrow interpretation of substantial burden upon a colorable showing of religious discrimination However, several recent decisions have retreated from the narrow interpretation of 140 Episcopal Student Found v City of Ann Arbor, 341 F Supp 2d 691, 694 (E.D Mich 2004) Id at 704 142 Id at 706 (“Finally, although Canterbury House may incur additional financial burdens, such as rental expenses to accommodate its entire congregation on occasion, or if it seek additional growth, such financial burdens are not ‘substantial’ under RLUIPA.”) 143 Id 141 34 substantial burden The Seventh Circuit, in the year after its decision in Civil Liberties, significantly broadened the scope of a substantial burden Distinguishing and not overruling Civil Liberties, the Seventh Circuit in Saints Constantine & Helen Greek Orthodox Church v City of New Berlin held that “delay, uncertainty, and expense” resulting from the denial of a request to rezone for religious use constituted an impermissible substantial burden.144 The burden need “not be insuperable” to be substantial 145 However, in addition to the denial, the city had committed a series of legal errors, and the court found the mayor was “playing a delaying game,” and all this created the inference of less than good faith on the part of the city 146 Similarly, in Guru Nanak Sikh Society of Yuba City v County of Sutter, the Ninth Circuit, applying the reasoning of San Jose Christian, held that Sutter County’s repeated denials of a conditional use permit to build a Sikh temple constituted a substantial burden 147 The court implied the possibility of subtle discrimination in the county’s denial, based upon the county’s inconsistent application of zoning law, its law of explanation for denial despite the group’s good faith efforts to satisfy every mitigation condition 148 A broad interpretation of substantial burden is not applicable to Third Church because no evidence of religious discrimination exists New Berlin and Garu Nanak are distinguishable from Episcopal Student and the issue in Third Church because they raise issues of administrative incompetence or, at worst, discrete 144 396 F.3d 895, 901 (7th Cir 2005); Lennington, supra note 26, at 821 New Berlin, 396 F.3d at 901 146 Id at 899 147 Guru Nanak Sikh Society of Yuba City v County of Sutter, 456 F.3d 978, 992 (9th Cir 2006) 148 Id at 990-91 145 35 discrimination In contrast, the HPRB has signaled its willingness to work with Third Church in reaching a compromise 149 Moreover, the administrative record shows that the church was landmarked because it was an example of Brutalist architecture, not because the HPRB wanted to restrict the religious practice of the Christian Scientists New Berlin and Garu Nanak are also distinguishable in that they deal with the siting and creation of new houses of worship By repeatedly denying the conditional use permit to the Sikhs, the County of Sutter was severely restricting their ability to locate But the burden involved in not being able to establish a house of worship is far greater than the burden in not being able to alter an established church building While the denials of siting approval not directly coerce a religious adherent to alter his beliefs, it does make religious exercise, to adopt the term from the Seventh Circuit in Civil Liberties, “effectively impracticable.” While preservation regulations impose financial costs on Third Church, they not necessarily rise to the level of a substantial burden on free exercise In contrast, preventing the demolition of Third Church of Christ, Scientist, would not necessarily make religious exercise “effectively impracticable” because religious exercise would continue as it had since the building was completed in 1971 This makes Third Church different from other cases where courts have been willing to find a substantial burden when a church is denied a permit to construct a building for religious worship 150 While congregants claim that the church is unwelcoming and that it costs $8,000 to erect scaffolding to change the 149 Transcript of Dec 6, 2007 HPRB hearing (on file with the Office of Historic Preservation) See Cottonwood Christian Ctr v Cypress Redev Agency, 218 F Supp 2d 1203, 1226 (C.D Cal 2002) (“Preventing a church from building a worship site fundamentally inhibits its ability to practice its religion….If Cottonwood could not build a church, it could not exist.”); Elsinore Christian Ctr v City of Lake Elsinore, 291 F Supp 2d 1083, 1090 (C.D Cal 2003) (“Denial of the [conditional use permit] bars the Church’s use altogether, thereby imposing the ultimate burden on the use of that land.”) 150 36 lightbulbs, 151 government actions that make the practice of religion more inconvenient or expensive—without making religious use impractical—have not been found to constitute a substantial burden upon religion 152 Of course, this is not to say that a financial burden on religious exercise could never rise to the level of a significant burden Applying the test adopted by the Seventh Circuit and others, Third Church would have to show that its finances are in such poor shape that the maintenance costs made religious exercise “effectively impractical.” 153 Considering that the congregation has declined from several hundred to approximately fifty or sixty weekly worshippers, 154 this is not unrealistic No court has decided what level of financial burden would amount to a substantial burden for either RLUIPA or First Amendment purposes, 155 but based upon St Bartholomew’s and Episcopal Student, the court’s inquiry would be detailed and searching To remain consistent with St Bartholomew’s, Third Church would have to provide “financial projections or cash flow analyses” to prove financing of repairs and maintenance were infeasible and would “prohibit” religious exercise, not merely make it more difficult 156 In addition, the Second Circuit’s opinion implies that a court would not run afoul of the constitution by requiring Third Church to mount a 151 Charles Paul Freund, A Brutalist Bargain, THE AMERICAN SPECTATOR, Dec 18, 2007, available at http://www.spectator.org/dsp_article.asp?art_id=12460 152 See Braunfield v Brown, 366 U.S 599 (1961) 153 See Civil Liberties for Urban Believers v City of Chicago, 342 F.3d 752, 760-61 (7th Cir 2003) 154 See Schwartzman, supra note 155 The court in First Covenant held a substantial burden arose because the church’s property was reduced in value by 50%, but this was largely based on the Washington State constitution First Covenant Church v City of Seattle, 840 P.2d 174, 182 (Wash 1992) 156 See St Bartholomew’s Church v City of New York, 914 F.2d 348, 355 (2nd Cir 1990) (quoting Lyng v Northwest Cemetery Protective Ass’n, 485 U.S 439 (1988)) (“The crucial word in the constitutional text is ‘prohibit.’”) 37 good faith fundraising drive 157 While St Bartholomew’s is a pre-RLUIPA case, using the St Bartholomew’s analysis as a guide is appropriate because the legislative history of RLUIPA suggests that substantial burden should be interpreted in line with precedent 158 The District of Columbia Court of Appeals in 900 G Street Associates v Department of Consumer and Regulatory Affairs held that an owner had to undertake good faith efforts to rent or sell the building before the court would make a finding of economic hardship 159 While 900 G Street involved a takings claim of a commercial building and not free exercise claim, it nevertheless reinforces the fact that a plaintiff carries a significant burden in alleging economic hardship The opinion in 900 G Street thus implies that Third Church may have to undertake good faith efforts to rent out parts of the building (perhaps for conferences) before the court would be willing to find the financial burdens substantial Substantial burden determination resembles Fifth Amendment takings analysis Third Church’s showing that religious exercise was “effectively impractical” therefore would be similar to the analysis of a Fifth Amendment takings claim This is not to say that Third Church must bring a successful takings claim first, but merely that the level of the burden is very similar 160 In Society for Ethical Culture v Spratt, the Court of Appeals of New York rejected the claim that the landmark designation of a historic mansion used by a charitable organization 157 See id at 359 See 146 CONG REC S7776 (daily ed July 27, 2000) (statement of Sen Hatch) 159 430 A.2d 1387, 1391 (D.C 1981) 160 This paper does not fully explore a potential taking claim; this paragraph is included to illustrate how the showing of impracticability under RLUIPA is similar to a takings claim under the Fifth Amendment 158 38 constituted an unconstitutional taking 161 The court stated that the landmark designation of a non-profit organization would be constitutionally permissible so long as “it does not physically or financially prevent, or seriously interfere with the carrying out of the charitable purpose.” 162 The Society for Ethical Culture had claimed its historic building was ill-suited for its needs However, the court said the society had not proved its activities within the building were “wrongfully disrupted” by the landmark designation and that the society was not entitled to put the property to its most beneficial use 163 The court in Ethical Culture distinguished an older case, Lutheran Church in America v City of New York, which had found that landmark designation to a church-owned property constituted a “naked taking.” 164 In Lutheran Church, the landmark structure had become so “hopelessly inadequate to the church needs” that had the regulations been applied, the charitable activity would have had no alternative but to cease 165 However, the Society for Ethical Culture—like Third Church—had not shown that the building was so “hopelessly inadequate” that the regulations would have had “no alternative” but to cause the charitable activity to cease.166 While Third Church could argue that the historic preservation regulations “seriously interfere” with their religious activity, Ethical Culture says that only when charitable activity would cease does the regulation work a taking 167 Similarly, the Second Circuit stated in St Bartholomew’s that a preservation law does not cause a taking—even though the regulation interfered with the church’s mission—because the 161 Society for Ethical Culture v Spratt, 415 N.E.2d 922, 926 (N.Y 1980) Id 163 Id 164 Id 165 Id 166 Id 167 See also Sailors’ Snug Harbor v Platt, 29 A.D.2d 376 (N.Y App Div 1968) (upholding landmark designation of historic building owned by charitable organization because the designation neither “physically or financially prevents” or “seriously interferes” with the organization’s charitable purpose.) 162 39 religious entity could continue its existing activities in its current facilities 168 In adapting the Supreme Court’s Penn Central test to property used for religious or charitable purposes, the court stated that “so long as the Church can continue to use its property in the way that it has been using it, there is no unconstitutional taking.” 169 In essence, then, the trigger for a takings claim in both Ethical Culture and St Bartholomew’s—the inability to continue use—is the same as for a free exercise claim: that religious exercise is “effectively impracticable.” D Role for accommodation Considering that the law in this area is uncertain, the District would be well-served by offering to accommodate Third Church Accommodation does create a real problem in that a landmark is a landmark and each property is supposed to protected to the same extent as any other However, the political realities involved here as well as the burden shifting that RLUIPA imposes encourage accommodation The statutory language of RLUIPA provides that the government can alleviate substantial burdens by proposing accommodations to religious entities 170 The legislative history of RLUIPA states that a claimant has the burden of showing that any proposed accommodation by the government to relieve the burden on religion is either “unreasonable or ineffective” before the claimant can prevail under the statute.171 As a consequence, assuming a substantial burden exists, the HPRB can propose a compromise—perhaps an alteration to the entrance to make it more welcoming—that addresses its preservation concerns as well as Third Church’s concerns, 168 See St Bartholomew’s, 914 F.2d at 357 Id 170 42 U.S.C § 2000cc-3(e) (2000) 171 146 CONG REC S7776 (daily ed July 27, 2000) See Julia H Miller, Regulating Historic Religious Properties Under RLUIPA, SM056 ALI-ABA 817, 829 (2007) 169 40 and Third Church would have to show the accommodation is “unreasonable or ineffective.” Accommodation is preferable because it reduces litigation costs and removes the controversy from the uncertainty of the courts Accommodation is preferable for political reasons as well Even if a potential Third Church challenge to the Mayor’s Agent’s denial of a demolition permit were rejected in the courts, the controversy could jeopardize the District’s overall ability to protect churches The initial landmarking decision has caused vocal outrage from some segments in the community, and District of Columbia Councilmember Jack Evans introduced a bill (which he withdrew a few days later) that would exempt houses of worship from historic preservation laws upon a statement of opposition from the religious entity 172 While Evans’ proposal presents its own constitutional challenges—it might present an unconstitutional establishment of religion to allow religious entities to opt-out of historic preservation laws 173 —a similar law was enacted and upheld as constitutional in California 174 The controversy from the case could jeopardize public support of including religious buildings within the overall historic preservation regime 175 Preservationists should want to prevent a law like California’s from being adopted in the District Therefore, while the 172 Bill on file with author To avoid an Establishment clause violation under the Supreme Court’s test in Lemon v Kurtzman, a government action or law must “have a secular legislative purpose;” its “principal or primary effect” must “neither advance[] nor inhibit[] religion,” and it must not foster “‘excessive government entanglement with religion.’” 403 U.S 601, 612-13 (1971) (quoting Walz v Tax Comm’n, 397 U.S 664, 674 (1970)) Exempting only religious properties arguably has neither a secular purpose nor a secular effect 174 See East Bay Asian Local Dev Corp v California, 13 P.3d 1122 (Cal 2000) The California law exempts all non-commercial properties from historic preservation laws if the organization objects to application of the regulations and makes a declaration in a public forum that it would suffer substantial hardship if the regulations were applied See Felipe M Nunez & Eric Seidman, California’s Statutory Exemption For Religious Properties From Preservation Ordinances: A Constitutional and Policy Analysis, 12 J.L & RELIGION 271-322 (1995) 175 Local media figures and property rights advocates have severely criticized the HPRB’s decision to landmark Third Church See Fisher, supra note 173 41 preservation laws stand a good chance of surviving a free exercise and RLUIPA challenge by Third Church, the realities of preserving the integrity of preservation laws as applied to religious structures urge efforts to accommodate CONCLUSION Historic preservation of religious properties poses numerous constitutional and policy questions The legality of historic preservation in the context of religious properties is more uncertain because the religious entities have a constitutional protection to free exercise that ordinary landowners not enjoy The discrepancy in case law reflects the difficulty courts having in applying free exercise jurisprudence to this area Despite the uncertainty and sometimes conflicting opinions, the Supreme Court’s denial of certiorari in St Bartholomew’s and its vacation of First Covenant during the same term strongly suggest that the Court would not consider the preservation of a religious property to be a violation of the free exercise clause Similarly, the decision in Episcopal Student, which is factually similar to the situation involving Third Church, suggests that the denial of a demolition permit would not be a substantial burden on religious exercise under RLUIPA These two decisions, particularly in light of the District of Columbia Court of Appeals’ preservation-friendly opinions in Metropolitan Baptist and Embassy Real Estate Holdings, LLC v District of Columbia, 176 greatly reduces the probability of a successful lawsuit by Third Church In order to prevail, Third Church would have to show that the preservation regulations made its religious exercise “effectively impracticable.” But the tension between preservation of churches and religious exercise will only become 176 Embassy Real Estate Holdings, LLC v District of Columbia, No 06-AA-1083 (D.C Mar 20, 2008) 42 more pronounced as congregations with historic churches suffer from shrinking congregations 177 Faced with increased maintenance costs and decreased attendance and tithing, this may be the first of many such challenges 177 For example, the diocese of Pittsburgh closed over 40 churches from 1988-94 Megan McCloskey, Historic Church Closes Its Doors Forever, PITTSBURGH TRIB REV., Dec 7, 2004 In Boston, the Roman Catholic archdiocese recently closed 83 churches, many of them historic Marilyn M Fenollosa, The Boston Archdiocese Parish Closing Process, in QUEL AVENIR POUR QUELLES EGLISES? at 139 (2007) 43 APPENDIX A 42 U.S.C §§ 2000cc (2000) Protection of land use as religious exercise (a) Substantial burdens (1) General rule government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution-(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest (2) Scope of application This subsection applies in any case in which-(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability; (B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved (b) Discrimination and exclusion (1) Equal terms No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution (2) Nondiscrimination No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination (3) Exclusions and limits No government shall impose or implement a land use regulation that-(A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction 44 APPENDIX B D.C Code § 6-1104(e) (2000) (1) In any instance where there is a claim of unreasonable economic hardship, the owner shall submit, by affidavit, to the Mayor at least 20 days prior to the public hearing, at least the following information: (A) For all property: (i) The amount paid for the property, the date of purchase and the party from whom purchased, including a description of the relationship, if any, between the owner and the person from whom the property was purchased; (ii) The assessed value of the land and improvements thereon according to the two most recent assessments; (iii) Real estate taxes for the previous two years; (iv) Annual debt service, if any, for the previous two years; (v) All appraisals obtained within the previous two years by the owner or applicant in connection with his purchase, financing or ownership of the property; (vi) Any listing of the property for sale or rent, price asked, and offers received, if any; and (vii) Any consideration by the owner as to profitable adaptive uses for the property; and (B) For income-producing property: (i) Annual gross income from the property for the previous two years; (ii) Itemized operating and maintenance expenses for the previous two years; (iii) Annual cash flow, if any, for the previous two years 45 .. .Preserving Sacred Places: Free Exercise and Historic Preservation in the Context of Third Church of Christ, Scientist, Washington, DC Bryan Stockton Historic Preservation Seminar... citing the free exercise clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), claim that historic preservation laws not apply to churches Preservationists... Jesus v Boston Landmarks Comm’n, 409 Mass 38 (1990) Standing for a Free Exercise Claim To have standing for a free exercise challenge, plaintiffs must prove that particular religious freedoms are